Yalsburg and Yalsburg

[2019] FamCA 30

FAMILY COURT OF AUSTRALIA

YALSBURG & YALSBURG [2019] FamCA 30

FAMILY LAW – CHILDREN – where the Court has previously made no finding of unacceptable risk in respect of either parent – where the mother holds entrenched views that the father has sexually abused the child – where the Court finds the mother’s current inability to genuinely support the child’s relationship with the father is a significant emotional risk to the child – where the Court finds it is in the best interests of the child to have a meaningful relationship with the mother – where the father and the ICL urge the Court to change the residence of the child – orders made for the child to live with the father.

Family Law Act 1975 (Cth) s 60CC

Yalsburg & Yalsburg [2018] FamCA 174

APPLICANT: Mr Yalsburg

RESPONDENT: Ms Yalsburg

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 10819 of 2016

DATE DELIVERED: 24 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 1 and 23 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms K Oakley

SOLICITOR FOR THE APPLICANT: Catton & Tondelstrand Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wilson QC

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Dodd

INDEPENDENT CHILDREN’S LAWYER: Ms Nicola Davies, Legal Aid Queensland

Orders

1. That all previous Orders be discharged.

2. That the father shall have sole parental responsibility for the child, B born … 2013 (“the child”), having consulted with the mother about decisions to be made in the exercise of parental responsibility and shall make a genuine effort to come to a joint decision with the mother.  The father and the mother are not, however, required to consult with each other about the daily care of B.

3. That the child shall live with the father forthwith but by at least 12 noon on 25 January, 2019.

4. That the child shall spend time and communicate with the mother as agree in writing but failing agreement, as follows:

School term time

(a)From 25 January 2019 to 28 February 2019 the child shall spend no time with the mother, save that the father may, at his discretion, facilitate the child communicating by telephone with the mother at the father’s initiation.

(b)Commencing Saturday 2 March 2019 and for 8 consecutive Saturdays, for up to 2 hours supervised by and facilitated by [TT Group] as follows:

(i)The time of commencement shall be as available to the supervisor, but preferably between 10.00 am and 12 noon.

(ii)The parents shall share equally the costs of supervision.

(c)Commencing Saturday 27 April 2019 unsupervised time shall commence and shall proceed in the following manner:

(i)For 8 occasions from 9.00 am to 2.00 pm on 8 consecutive Saturdays;

(ii)Then for 8 occasions on 8 consecutive Saturdays from 9.00 am to 4.00 pm; and

(iii)Then commencing Saturday 24 August 2019 each alternate weekend thereafter from 9.00 am to 4.00 pm each Saturday and Sunday until the commencement of the 2020 school year.

(d)The regime of time the child shall spend with the mother during 2019 shall be maintained during 2019 school holiday periods.

1. Commencing with the school recommencing in January 2020, the child shall spend time and communicate with the mother as agreed in writing but failing agreement as follows:

   (a)During school terms, One and Two, each alternate weekend from 9.00 am Saturday to 4.00 pm Sunday; and

   (b)During school terms, Three and Four, from after school Friday to 4.00 pm Sunday.

2. Commencing with the school recommencing in January 2021 and thereafter, the child shall spend time and communicate with the mother as agreed in writing but failing agreement during school terms, each alternate weekend from after school Friday, to before school Monday, extended to before school Tuesday if Monday is a public holiday or pupil free day.

School holiday time

1. The child shall commence spending time with the mother during school holidays in 2020 and thereafter as follows:

   (a)For the end of Term One, Two and Three school holidays in 2020 as follows:

   (i)For 3 days (2 nights) during the end of Term One and Term Two 2020 school holidays as agreed, and if not agreed, then comprising the middle weekend.

   (ii)For the end of Term Three 2020 school holidays for 4 days (3 nights) as agreed, and if not agreed, then comprising the middle weekend.

   (b)For the end of Term Four 2020 school holidays for 1 week in December 2020 and 1 week in January 2021 as agreed.

   (c)Commencing the 2021 school year and thereafter the child shall spend half of each school holiday period with the mother, being the first half in 2021, and odd years thereafter and the second half in 2020 and even years thereafter.

Telephone time

1. The child shall spend time with and communicate with the mother by telephone, Facetime or Skype as follows and on the following terms:

   (a)From 2 March 2019 each Wednesday and non-contact Saturday between the hours of 6.00 pm and 6.30 pm unless otherwise agreed and:

   (i)For 2019, the father shall be permitted to monitor telephone calls between the child and the mother by placing the call on speaker phone; and

   (ii)For 2020 and thereafter the telephone calls shall be in private, unrecorded and uninterrupted.

   (b)The mother shall initiate the calls to the child by dialling the father’s nominated telephone or, if by Skype, nominated Skype facility and the father shall ensure the child is available to receive the call.

   (c)If the child is not available at the designated time to receive the call, the father shall with as much notice as is reasonably possible, advise the mother by text message of the reason why the child is unavailable and nominate an alternate time within a period of 24 hours when the child will be available.

Special event time

1. Notwithstanding prescribed arrangements in this order, the child shall spend time or communicate with the mother:

   (a)By telephone, Facetime or Skype on his birthday on … 2019;

   (b)By telephone, Facetime or Skype on Mother’s Day 2019; and

   (c)By telephone, Facetime or Skype on Christmas Day 2019.

2. From the commencement of 2020 and thereafter:

   (a)On Mother’s Day, when no otherwise scheduled to spend time with the mother under these orders, between 9.00 am and 4.00 pm;

   (b)On the child’s birthday, when not otherwise scheduled to spend time with the mother, between 9.00 am and 12 noon (for a non-school day) and 3.30 pm to 6.00 pm (for a school day); and

   (c)For and during the Christmas period from 4.00 pm Christmas Eve until 4.00 pm Boxing Day as follows:

   (i)For Christmas 2020, from 4.00 pm Christmas Eve until 1.00 pm Christmas Day; and

   (ii)From Christmas 2021 and thereafter noting that by this time the child shall be spending half of the end of year school holiday period with each parent, the parent who exercises the first half of the school holidays shall have the child with them for Christmas Day, but shall facilitate the child speaking by telephone, Facetime or Skype with the other parent on Christmas Day.

3. The child shall spend Father’s Day with the father each year, and if Father’s Day falls on a weekend when the child is scheduled to spend time with the mother, then the time with the mother shall be suspended between 9.00 am to 4.00 pm on that particular Father’s Day.

Other Orders

1. That to facilitate the child’s time with the mother changeovers shall occur at Suburb PP McDonalds if not otherwise ordered to take place at the child’s school.

2. That subject to the conditions imposed by the child’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

3. That each parent shall ensure that the child attends all educational, sporting and hobby events when the child is with that parent in all reasonable circumstances.

4. That the parents shall keep each other informed of matters concerning the child via a communication book that travels with the child at the commencement and conclusion of any time spent with the child on all aspects of the care, welfare and development of the child, such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to the child.

5. That the parents shall keep each other informed at all times of their residential address and contact telephone number and shall notify the other parent at least seven (7) days prior to relocating their residence beyond a twenty (20) kilometre radius from where they currently reside.

6. That the parents be restrained and an injunction issues restraining the parents from:

   (a)physically disciplining the child;

   (b)discussing; questioning or otherwise encouraging the child to discuss adult issues of conflict raised during the trial, and in particular past allegations of alleged abuse whether sexual or otherwise;

   (c)denigrating or making hurtful comments about the other parent and the other parent's family and partners in the presence or hearing of the child; and

   (d)recording by phone or other device the words or actions of the child other than playing, and in particular, for the purpose of establishing alleged disclosures or negative remarks about the other parent.

7. That the child shall attend upon Dr E and the mother and the father shall participate in the counselling/therapy as recommended by the treating practitioner with the costs of Dr E in respect of consultations for the child and father to be paid by the father.

8. That the Independent Children’s Lawyer be at liberty to provide the Court’s Reasons for Judgment to the child’s treating practitioner, the counsellors for the mother and the father, to the Department of Child Safety, Youth and Women and to the Queensland Police Service.

9. That 3 months from the date of this order the Independent Children’s Lawyer shall be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yalsburg & Yalsburg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10819 of 2016

Mr Yalsburg

Applicant

And

Ms Yalsburg

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 23 March 2018, the Court published Reasons, after a five day hearing, for interim orders pronounced that day (see Yalsburg & Yalsburg [2018] FamCA 174) (“the said earlier Reasons”). In these Reasons when I refer to particular paragraphs, that should be construed as a reference to the said earlier Reasons. The orders pronounced provided for the parents’ only child B (“the child”), now aged 5 ½ years, to continue to live with the mother Ms Yalsburg, but to spend increasing unsupervised time with the father Mr Yalsburg.

2. Having found “that sexual abuse of [B] by the father has not occurred” (paragraph [58]), the Court decided, contrary to the then forceful submissions of Counsel for the father, that the child should continue (on an interim basis) to live with the mother but spend increasing time with the father, and in this respect it was a “finely balanced conclusion as to whether… a change of residence at this time is in [B’s] best interests” (paragraph [81]).  Central to the decision at that time was the view expressed at paragraph [80] that inter alia:

   80.      The interim order the ICL submits I should make, and which I intend to make generally, will clearly put both parents under more scrutiny and a degree of pressure, both emotionally and financially.  I have considered that predicament which I accept is not optimal.  However, the Court wishes to give to [B] the best chance of emerging from being the focus of this litigation, to having a functional and enriching relationship with both of his parents – not just one of them.  I accept the relevance of the concern raised by the father’s Counsel, that an interim order for some months is not a real test of whether the mother’s attitude and behaviour can be seen to improve sustainably.  He may be correct, however the mother will certainly be challenged to consistently reveal a new and supportive attitude to [B’s] relationship to his father.  Whilst the mother is dealing with that challenge, the child’s relationship with the father (and the child’s siblings) can experience real repair.  In so doing, [B] has a real opportunity to begin to balance the slightly different parenting styles of his parents.  The father will be free to be more involved in [B’s] school/childcare life and involve him in extra-curricular activities.  Of course, the mother says the father at times has shown little interest in [B].  If that be true (which the Court does not accept on the evidence currently offered to the Court), then orders the Court proposes to make and that are in [B’s] best interests, will fail because of the father’s lack of commitment.  Most importantly, notwithstanding the regrettable history since September 2015, [B] not yet five years of age, the Court is not prepared to consign him to any prospect of only having one parent in his family to guide and nurture him into the future and expects his parents to do their best to put the past period behind them and work towards a better outcome for their son than has been the case for the last over two years.”

3. The orders of 23 March 2018 provided for B’s time to include overnight time after four weeks – increasing to alternate weekends (4.00 pm Friday to before kindergarten Monday) for most of 2018.  Two periods of block time were ordered in the end of year holidays.

4. Sadly, as is recorded in these Reasons, the child’s time with the father was interrupted.  I am now again urged by the Independent Children’s Lawyer (“ICL”) and the father to change B’s residence to the father.

5. For the reasons which follow, I have decided to do so.

Brief history since March 2018

1. I rely upon, but do not specifically repeat every finding earlier made.  I have again had the opportunity to observe the parties under cross examination and consider fresh evidence since the first trial.  Whilst Mr Dodd of Counsel still appeared for the ICL, Mr Wilson SC appeared for the mother and Ms Oakley appeared for the father.  I was greatly assisted by their advocacy in this difficult matter.

2. Statements of fact hereafter should be construed as findings of fact.

3. After the interim orders were made B began to spend unsupervised weekly day time with the father and experience his first overnight contact visit on 5 May 2018.

4. Under order 12, the child was to attend upon Dr E (Psychologist) and after some initial appointments individually with the parents in April 2018, B attended upon Dr E initially on 3 May 2018.  Dr E provided two reports for the Court’s consideration (marked Exhibit 2) and was subject to cross examination.  I deal more fully with this evidence as a discrete issue below.

5. In the context of the history to that point, it came as a complete surprise to the father that on 11 May 2018, his solicitors received correspondence from the mother’s solicitors at the time, inter alia that she had received “a permanent job opportunity in [QQ Town] and is in the process of relocating”.  The mother acknowledges her relocation “will impact on [B’s] schooling and shared care times”, and proposed a reduction in the time the child would spend with the father during school terms but was agreeable to additional holiday periods being allocated to the father.  The mother had, prior to the correspondence being sent, made enquiries with a school in G Town.  The initial response by the father’s solicitors on 14 May 2018 was not positive and by 17 May 2018, was rejected by the father, describing the mother’s actions as “disingenuous and demonstrative of your client’s incapacity to support a relationship between [B] and our client”, an argument rejected by the solicitors for the mother in their letter of 31 May 2018 which offered further explanations.

6. It is, in the Court’s view, a matter of significance that around this time, and specifically by 19 May 2018, the mother says that she was observing “extremely concerning behaviours” in the child and began to make “concerning disclosures about what [Mr Yalsburg] was doing to him”.  The mother claims this began when B “started spending extended and unsupervised time with [Mr Yalsburg]” (see paragraph 17).  On 19 May 2018, the mother raised her concerns (not with the father) but by email to Dr E.  Although the child was to spend the weekend of 19/20 May 2018 with the father, as the father was away for work, he and the mother had agreed to reschedule until the following week.  On 24 May 2018, the mother advised the father that she had enrolled B in RR School in G Town and “that she was in the middle of moving up there”.

7. After the rescheduled visit took place on 26/27 May, the mother asserts (at paragraph 23) “further disclosures and concerning behaviour by B”.  In view of findings below, I chose not to deal with each allegation, save to note that the mother’s evidence at paragraphs 23 to 33 have very similar themes to allegations made and dealt with in the earlier trial.  It is further recorded that the mother decided that B was too sick to go to kindergarten in the week of 28 May 2018 and cancelled a scheduled appointment with Dr E for 30 May 2018.  Clearly, in view of the mother’s email of 19 May 2018 and the alleged further disclosures, the child attending Dr E on 30 May 2018 was important.  No medical evidence was offered to the Court by the mother, confirming the extent of the child’s “sickness” at this time.  Further, the Court notes that her solicitor’s letter of 31 May 2018 makes no mention at all of any concerning behaviour or disclosures as the mother deposes to.

8. In a similar way to that adopted by the mother and explored in the said earlier Reasons, the mother in her Affidavit at paragraphs 33 to 47 details what she describes as her “discussions with professionals”.  This involved Dr E (whose evidence I deal with below) and her general medical practitioner Dr GG.  The mother claims that Dr GG (who was not called to give evidence in this part of the trial) advised her on 12 June 2018 to contact the Department of Child Safety, Youth and Women (“the Department”) and the Police and the mother claims that she did not want to jump “to any conclusions” and said that he would need to “contact the Department”.  If in fact, as claimed by the mother, Dr GG had formed a view that he had an obligation to make a mandatory report, then he was obliged to do so.  The mother asks the Court to accept he did not do so because she persuaded him not to (see paragraph 36(d)).  The consultation note for 12 June 2018 merely mentions “pain occurs following visit to father’s place” – the pain being “perianal pain…when passing bowel movements”.  The notes do not suggest the doctor had a basis, on examination, to make a mandatory report to authorities.

9. The father had a hospitalisation for a back complaint around this time and, with increasing tensions and poor communication, a scheduled visit did not take place, but in this matter little turns on this in my view.

10. What is clear is that the last visit that B had with the father was for one overnight contact visit on 23/24 June 2018 and the ordered first two night access visit between 6 and 8 July 2018 did not occur, with contributing factors being:

    a)on 5 July 2018 the mother sent a text message to the father suggesting a change to the following weekend because “[Ms SS] is having a family get together for her birthday”.  By this date the mother had not disclosed to the father, the extent of alleged further disclosures by the child of abuse by the father; had not informed the father of the consultation with Dr GG or that, as discussed shortly, the child had told his kindergarten teacher Ms UU that “daddy puts his fingers in my bottom”, causing the kindergarten to make a mandatory report to the Department on 27 June 2018;

    b)on 5 July 2018, the mother says she received a call from Police inviting B to participate in a record of interview;

    c)on 11 July 2018 the father informed the mother by text message that he was unable to take B the forthcoming weekend and “maybe the following” because of a serious back condition – causing the father to be admitted to hospital for surgery on 11 July 2018 and ultimately released on 17 July 2018;

    d)on 16 July 2018 the father informed the mother that he could not drive for a few weeks, and asked the mother to drop B to his home on the Friday rather than the father collecting the child.  The father’s email did not suggest, despite the recent surgery, that he could not look after B.  The mother did not immediately respond to the father, but the evidence reveals a lot of discussions were taking place at this time between the mother and the Department.  The mother asserts the Department, via an officer called Ms DD, was advising her that (based on the mother’s version of events) that “there are indications that the behaviour is associated with the contact with [Mr Yalsburg]” (paragraph 50).  I am not satisfied that the Department expressed this opinion.  The mother did not call any person from the Department to give evidence.  I find, as had happened previously, the mother formed a view that withholding B from the father was supported by the “professionals”, by this point in time;

    e)the mother, whilst she was discussing matters with the Department, I find made excuses for B not spending time on the rearranged weekend 13/14/15 July (for the mother’s birthday) and the weekend of 20/21/22 July (because the child had “gastro”).  The mother knew the father intended to exercise his time with B commencing 20 July 2018 even if the child was sick.  In the evening of 19 July 2018, the mother took the child to the emergency department of a local hospital very late (returning home at 3.00am), and sent a text to the father on 20 July 2018, the exchanges set out at paragraph 57 of the father’s Affidavit;

    f)the father, in my view, had every reasonable expectation that B would spend consecutive weekends with him (for two nights each visit), on 27 to 29 July and 3 to 5 August 2018.  The father formally informed the mother by text (she no longer having legal representation) on 25 July 2018 that he did not agree to her relocating to G Town;

    g)the mother did not inform the father that B attended a s.93A Police interview on 26 July 2018.  What the mother did do, was send a text to the father on Friday, 27 July 2018, in the these terms:

    Hi [Mr Yalsburg].  I have been advised there is a child safety investigation.  As a result, I’m holding off [B] having contact until child welfare advise me, thanks [Ms Yalsburg].”

    At the request of the ICL, and in accordance with the orders in existence, the matter was re-listed for 20 September 2018 at which time the following orders were made:

    1.        That the child, [B] born … 2013 shall spend time with the father supervised by [TT Group], between 2.00 pm and 4.00 pm each Sunday or such other times as may be able to be facilitated by [TT Group].

    2.        That the parents shall meet equally the costs of such supervision.

    3.        That the mother attend the intake process with [TT Group] booked for Tuesday, 25 September 2018.

    4.        That the parents be at liberty to provide to [TT Group] a copy of the Reasons for Judgment delivered by the Honourable Justice Baumann on 23 March 2018.

    5.        That the Court date of 29 October 2018 be vacated.

    6.        That these proceedings be set down for Final Hearing for not more than one (1) day commencing at 9.30am on 1 November 2018 in the Family Court of Australia at Brisbane.

    7.        That each party file and serve on each other no later than 4.00pm on 25 October 2018, any updating Affidavit material.

    8.        That each party file and serve on each other no later than 4.00pm on 29 October 2018, any amended case outline.”

1. The father had his first supervised visit since 10 June 2018 on 30 September 2018.  The mother had facilitated some “facetime” contact over the nearly four months when there was no physical contact.

2. The Court took evidence and heard cross examination, on 1 November 2018 – with Counsel for the mother advising the Court at the commencement that he will not be making a submission that the father is an unacceptable risk of harm to B.  The Court was informed that the Police had, on 30 October 2018, informed the mother that the investigation was completed and no further action would be taken.

3. On 1 November 2018, orders to ensure B’s time with the father were made as follows:

   1.        That orders 4 and 5(a), (b), (c), and (d) of the Orders dated 23 March 2018 be discharged.

   2.        That the child, [B] born … 2013 (“the child”) shall:

   a.        live with the father:

   i.         from 10.00 am Friday, 2 November 2018 until before kindergarten on Monday, 5 November 2018; then

   ii.        each week from Friday at 3.00 pm until before kindergarten each Monday.

   b.        live with the mother at all other times.

   3.        That to facilitate the child’s living arrangements, the mother shall deliver the child to the father’s home each Friday and the father shall return the child to kindergarten each Monday morning.”

4. On 23 November 2018, further submissions were made by Counsel and judgment was reserved.  It is a regret that the limited time then available to prepare and deliver reasons before Christmas made it impossible for the Court to do so.  The Court, at the very least, was conscious of the fact that B was likely to have a fun time over Christmas and New Year with both parents.

5. With school to commence next week, these Reasons reveal why the father’s choice of schooling shall apply, as the child will be living with him.

Principles to be applied

1. I rely upon the principles to be applied as set out in the said earlier Reasons.  In my view, an exhaustive examination of every s.60CC(2) and (3) consideration is not required again now, as many of the findings made still apply.

2. At the crux of the decision is whether the continued conduct of the mother supports a finding that she presents as an unacceptable risk of emotional harm to B and if so, in the best interests of the child, should a change of residence now be ordered.  That change – a move from the undisputed primary carer of B for his life – has consequences which must be balanced against the risk found by me to exist.

3. Before undertaking this “balancing” exercise, I make some further discrete findings.

Does the father present as an unacceptable risk to B?

1. Even if the mother had not made the concession, through her Senior Counsel that she did, the evidence does not establish any risk of harm either physical, sexual or emotional if B is in the unsupervised care of the father.

2. In making this finding, I record that the actions of the kindergarten on or about 27 June 2018 in making a mandatory report, must be seen in the context of how the child was, in my view, encouraged if not actually coached, by the mother to make an allegation of abuse to his kindergarten teacher Ms UU.  Ms UU gave evidence and was cross examined by telephone.  Where the evidence of Ms UU about the conversations on the day and her impressions, differ from those of the mother, I accept and prefer the evidence of Ms UU.  In short, that evidence included that:

   a)B attends kindergarten four days a week;

   b)although B’s behaviour could have an element of “roughness” in his playground interactions with other children, she regarded B as exhibiting fairly typical behaviour for a child of his age;

   c)in May 2018, she had cause to raise with the father some concerns about his inability to share.  She never saw any change in B’s behaviour around the times he was in the father’s care; and

   d)the teacher recalled the mother prompting B maybe three of four times with the words “have you got something to tell [Ms UU]”, before B, I infer in a casual manner, said words to the effect “dad puts fingers in my bottom”.  Before just taking off to play, without further comment, the mother said to Ms UU in the presence of B, words to the effect “are you proud of him for telling you?” to which Ms UU replied “yes, I am always proud of him”.

3. Ms UU is an experienced and tertiary trained teacher.  She was aware of her mandatory reporting obligations and spoke to the Department.  Thereafter the mother was informed by the kindergarten of the report having been made.  The mother then engaged quickly with the Department.

4. On the evidence, I find that this discussion at kindergarten was designed and orchestrated by the mother to lead to the kindergarten having to make a report – and in so doing, the mother felt that gave more credibility to the disclosure – it not coming directly from her as had been the case in the past.  This was an example, in my view, of her manipulative behaviour.

5. It is also noted that the records of the Police investigation and s 93A interview of the child, amply justify the conclusions reached by Police that further action was not warranted.  The father fully cooperated with a Police interview on 14 October 2018.  The fact that the mother, effectively initiated, the child again having to go through this exercise is an example of the concern the Court holds about the mother’s behaviour.

6. Of significant concern is the mother’s need to inform the Department initially about earlier allegations comprehensively dealt with in my earlier Reasons – as if they were true.  The mother did likewise when the [TT Group] supervision began (see Exhibit 7 – particularly the mother’s Intake Responses) This goes to the mother’s continued belief of the allegations (including past ones) being true, and that is a concern.  I do not accept the mother’s evidence that she informed authorities about the discredited earlier issues just for background or historical context.  Her continued need to advise of the father’s childhood school experience of a teacher’s lewd behaviour and the issues at BB Contact Centre are to point.  I am satisfied the mother’s intention was to further damage the father’s character by “connecting” his childhood experience with her view of the probability B was being abused by the father.  It was an example of deceptive behaviour by her.  I do not record the views captured in the Magellan reports (Exhibit 1).  As far as I am concerned they reveal the lack of candour and manipulation of the mother around the disclosures.

Does the mother present as an unacceptable risk of psychological harm to B?

1. The mother’s continued and, I find entrenched views, about the father not only perpetrating sexual abuse upon B but of being a person capable of such heinous acts, has been manifest again.  Even disrupting and ceasing a “professional” support network around her as examined at the first trial, has not caused the mother to change her behaviour.

2. As previously recorded, the mother is hyper vigilant and does meet the child’s physical needs and routines.

3. However to the extent that the Court was prepared to allow the mother time to demonstrate her capacity to “compartmentalise” her beliefs – she has demonstrated an inability to do so.

4. It is not possible to determine whether the mother has “concocted” the recent allegations – namely simply made them up.  I cannot be certain on the evidence.  I do find however that it is likely, as the father’s relationship was growing stronger with B and the next stage of a two night visit was approaching, that the mother became anxious about her perhaps reduced time or hold over B, prompting further discussions between her and B.  I hold no confidence at all that the mother has given complete evidence of discussions leading up to the recent disclosures about having “secrets” and the father putting “fingers” in the child’s bottom.  I am satisfied the mother has to a degree “coached” the child to make and repeat allegations that have no foundation.

5. Of significant concern is the effect of the mother’s actions.  In this regard the reports of Dr E (Exhibit 2) are enlightening.  Dr E was not able to be “enlisted” by the mother in her beliefs, as appeared to be the case with an earlier therapist Ms AA.  The reports speak for themselves, with Dr E confirming during cross examination that:

   a)she regarded her role as assisting in the “reunification process” between B and the father in circumstances where the child’s time with the father had been limited and disrupted;

   b)even though the mother’s presentation showed “engagement and willingness” the mother struggled with some parts of the process because of her belief that “something is happening to B”;

   c)the decision by Dr E to refer the mother and B to a different therapist (Ms VV) for assistance arose from, it seems, two concerns, namely:

   i)a belief the mother might build a better rapport with a different therapist; and

   ii)the observed interaction between the mother and B on 20 June 2018 where the child “proceeded to wind the string around the mother’s throat”.

6. Dr E, in her reports, concluded from her observations that the father “was a willing and active participant in his therapeutic sessions” and that “his relationship with B seemed to be both positive and healthy, as [B] appeared to seek out, and enjoy conversing and communicating with his father” and the father demonstrated “clear boundaries for acceptable behaviour”.

7. In contrast, in explaining her reasons for the referral of the mother and B to Ms VV, Dr E said in her report:

   7.05    However, in the therapeutic sessions, [Ms. Yalsburg] presented as being anxious and upset.  Most of this concern was in relation to [B] and his well-being and the contact with his father.

   7.06    As evidenced by her report to the consultant that she had contacted the Department of Child Safety and the Queensland Police, she remained concerned that [B] was experiencing symptoms of anxiety and that these were largely related to the contact time he had with his father.

   7.07    The consultant was concerned about the behaviour demonstrated by [B] toward his mother in sessions and [Ms. Yalsburg’s] interactions with her son.

   7.08    These concerns included:

   ·[B’s] willingness to engage in play that hurt his mother

   ·[B’s] lack of responsiveness to his mother (e.g. lack of eye contact, lack of conversation)

   ·[Ms. Yalsburg’s] facilitative/permissive rather than authoritative interaction with [B]

   ·[Ms. Yalsburg’s] alarm regarding [B’s] interpretation of children’s stories and events

   7.09    The consultant expressed the above concerns to [Ms. Yalsburg] and advised that it was her opinion that further sessions should be conducted with an alternate family specialist to assist [Ms. Yalsburg] with building a healthy and positive relationship with [B].

   7.10    [Ms. Yalsburg] appeared agreeable.  The consultant referred [Ms. Yalsburg] to an alternative psychologist for intense assistance with the mother child relationship.”

8. In my view, B’s concerning behaviour directed to, I accept, his loving mother, reflects not the interaction with the father being problematic, but that by 20 June 2018 (with the context earlier set out) a growing anxiety by the mother and her inability to effectively parent because of her entrenched beliefs about the father.  It would have been confronting for the mother to experience B’s almost cruel (not playful) behaviour but her lack of insight into her contribution to that behaviour is apparent to the Court.

9. Based on all the evidence examined during the first hearing and subsequently during this next stage, I have reached the conclusion that the mother is currently unable to genuinely support the child’s relationship with the father, and that her reluctance (although at times demonstrated with kind texts) is a significant emotional risk to the child.

10. The mother will continue to hold the beliefs about the father and the child will find it difficult, if the child continues to live permanently with her, to develop a happy and normal relationship with the father, who is capable to parent and no less loving than the mother.

11. In these circumstances, the Court must now consider a change of residence, so as to allow the father to guide and manage B’s emotional development – which the mother is not able to do.

12. However, even though the father has been able to spend more (and extended) time with B (supported and at times in the presence of B’s older siblings), such a change will be a significant change for B.  The following examination looks at the effect of the change on B – the balancing act previously alluded to.

Effect on B of a change of residence

1. I accept that B has always lived with the mother and that, until the recent orders, the child had not spent consistent and extended time with the father since separation in September 2015.

2. However I find support for the view I now hold, that B will not only cope with but flourish in the father’s care as primary carer based on:

   a)the evidence of Dr E during therapeutic sessions of the strength of the positive relationship between the father and his son, which I accept;

   b)the evidence of the father, which I accept, of how B has bonded with him and enjoyed his time with the father and C and D;

   c)the likelihood that B will also be engaged in the excitement of going to school, which the father is both available, willing and able to support and encourage;

   d)the likelihood that the anxiety and distress that the child is likely to experience initially in a change of residence, under the terms of the order I pronounce, will be managed by the father to the best of his ability in a balanced and sensitive way, and with the support of therapy from Dr E, which the father is likely to recommence he says;

   e)a finding, which I make, that the father is less likely than the mother to make hurtful and denigrating comments to the child about the mother and, although I accept he has himself been frustrated and distressed by the proceedings and actions of the mother, he shows the capacity to “compartmentalise” his negative feelings about the mother from the child.  He must continue to do so; and

   f)even though the orders I make are not in the terms sought by the father, I am confident he will abide by the orders and support a healthy relationship between the child and the mother, and her extended family – but from a position where he will be the primary carer and will have sole parental responsibility for major long term issues.

3. I do have concerns about how to successfully begin a repair of the child’s relationship with the mother.  Ms VV, from whom no direct evidence was offered, might be able to assist, however it is the mother’s change of behaviour and attitude that lies as the catalyst for an enduring positive and healthy relationship with her son.

4. Although a holistic reading of these Reasons will make it clear, let me record again, and clearly, that I have come to the conclusion that if the child continued to live with the mother and she continued to be the primary, if not major, influence on his views about his father then:

   a)it is likely any relationship between the child and the father will break down;

   b)the child will be encouraged to see the father as a person who will harm him sexually and this would in time create a fear in the child; and

   c)any comment by the child to the mother about the father’s behaviour will be construed, consistent with the mother’s entrenched beliefs, if possible, negatively and as further evidence of abuse which will likely cause the child to be examined by medical practitioners, therapists chosen by the mother and engaged in Departmental and/or Police investigations.  This must stop.

5. Having reached the decision that a change of residence must, in the best interests of B occur forthwith so as to allow the father to enrol the child in a local school, the issue that arises is how the child’s time with the mother from that change should occur and on what terms.  This issue is dealt with next.

6. For completeness, and with an eye to s 60CC(2)(a), I do find it is in the best interests of B to have a meaningful relationship with the mother.  He has such a relationship now – although for the reasons given it is strained at some times and unhealthy in some respects.  The mother’s love for her son is probably greater than her unrealistic, obsessive and entrenched negative views about the father.  It is hoped that in time that priority will emerge consistently in the future.  Until it does, and whilst the mother’s transition occurs, the child at least will be in the care of the father.

PARENTAL RESPONSIBILITY

1. On the evidence the presumption of equal shared parental responsibility is contrary to the best interests of the child and therefore the presumption does not apply.  Although the text communication between the parties has improved, the real and effective communication in respect of major long term issues is likely, because of the history in this matter, to be problematic.  In the circumstances of this case and consistent with the submissions of the ICL and the father, it is in the best interests of the child for the father to have sole parental responsibility.  The father will be required to keep the mother informed of major long term decisions and, ideally, over time the communication and respect between the parents will improve to such a level that they can consult and reach agreement about major long term issues.  Because the Court is unable to be satisfied when that point in time will arrive, the father must be in a position to make decisions and not have decision-making delayed because of communication issues and different parenting attitudes.

2. For completeness, the Court is not required to consider making an order for equal time or substantial and significant time and neither party suggests such (except perhaps in the distant future) and even if it was to be considered, such orders would not, on the current evidence, be in the best interests of B or reasonably practicable.

Form of orders

1. In final submissions, Counsel for the ICL offered a form of final order, which was marked Exhibit 8 (tendered on 23 November 2018), and is Appendix One to these Reasons.

2. In response to that final order:

   a)the father, through his Counsel Ms Oakley, urges the Court to make orders in accordance with the father’s amended case outline filed 30 October 2018 (see Appendix Two to these Reasons).  The father seeks an initial “settling” in period of one month when no time shall occur, before supervised time commences, facilitated by TT Group or as agreed.  The father did not, in my view, articulate when the child’s time would progress to unsupervised time and whether, and if so, what catalysts or actions by the mother, would herald such safe progression; and

   b)the mother’s case outline (as was her sworn evidence before cross examination) reflected a position that the father was an unacceptable risk to B. However, if the Court found risk was not established, the mother’s case outline filed 31 October 2018 contended for the chid to live with the mother and for the child to spend time with the father each alternate weekend (after school Friday to 4.00pm Sunday) and for blocks of school holiday time only during Christmas school holidays.  The mother did engage with what she proposed should the child live with the father, and her proposal is set out at Appendix Three to these Reasons.

3. An examination of these competing proposals reflects the following fundamental differences if, as I will order, the child lives with the father, namely:

   a)the father contends for a “moratorium” of one month and then into supervised time.  Such supervised time would be limited as to both frequency and duration because of the costs of supervision and likely availability of any service – particularly a community based service; and

   b)neither the ICL or the mother submit for a moratorium and neither of their proposals contend for supervised time.

1. The orders pronounced, which appear at the commencement of these Reasons:

   a)provide for a one month “settling” in period;

   b)progresses the mother’s time through a period of weekly supervised time for eight visits; then

   c)gradually increasing unsupervised time, but no holiday time, during 2019 being the child’s first year of school; and

   d)from the commencement of the 2020 school year holiday time will be incorporated.

2. I believe it will be in the best interests of B for the father’s role as primary carer to be established by both his primary care and parenting approach, before the risk of the mother’s unsettling behaviour is exposed to the child.  This is the core reason for the one month moratorium (when the child will also be required to adjust to a new home environment and school).

3. Of course, the events of this year might cause the mother to seriously look at her actions and seek intensive therapy – but she has not demonstrated an ability or willingness to do so before now.  This is not about the play therapy facilitated by Ms VV, but (building on the concerns identified by Dr H) a need for the mother personally to get some assistance.

4. I considered whether it was appropriate to incorporate some prescribed obligations on the mother to seek such assistance, however I have elected not to do so and the mother must genuinely seek that help rather than her feeling she must “tick a box” to move to the next level of care.

5. I accept the time limits for progression are somewhat arbitrary.  B is turning six years in May 2019.  A degree of speculation is involved when trying to anticipate how his behaviour may change when he is seven years, eight years or older.  No further evidence by way of a family report was available, nor frankly was it likely to assist in the speculation to be undertaken.

6. In the exercise of my discretion, I find that the orders pronounced are in B’s best interests.

7. Finally, I accept that I am required to consider making orders least likely to lead to further proceedings.  It is likely the mother will be both distressed if not angry by what she is likely to perceive to be the injustice of this decision.  She has steadfastly viewed all her behaviour as nothing more than the actions of a caring and loving mother.  No doubt she will garner support, as she has in the past, for the correctness of her parenting style and beliefs.  Because I hold little optimism such beliefs are likely to change (without at least some prolonged therapy and reflection), the institution of further proceedings is likely.  However, at least, any future judicial determination can be undertaken in the context of two separate Reasons for Judgment incorporating a number of critical findings.

8. I hope, ultimately, B will, with the change of residence, reach his potential which I regard as less likely, if a change of residence had not been ordered.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 24 January 2019.

Associate: 

Date:  24 January 2019

APPENDIX ONE

1. That all previous Orders be discharged.

2. That the father shall have sole parental responsibility for B, having consulted with the mother about decisions to be made in the exercise of parental responsibility and shall make a genuine effort to come to a joint decision with the mother.  The father and the mother are not, however, required to consult with each other about the daily care of B.

3. That B live with the father.

4. That B spend time with the mother

   a)For 8 occasions from 9 a.m. to 12 noon on 8 consecutive Saturdays, commencing the Saturday after these orders come into force;

   b)For 8 occasions from 9 a.m. to 2 p.m. on 8 consecutive Saturdays;

   c)For 8 occasions from 9 a.m. to 4 p.m. on 8 consecutive Saturdays;

   d)For 4 alternate weekends from 9 a.m. Saturday to 4 p.m. Sunday;

   e)For the remainder of 2019 on alternate weekends from 4 p.m. Friday to 4 p.m. Sunday;

   f)From commencement of B’s Year 1 schooling in 2020

   i)on alternate weeks from 5 p.m. Friday to 5 p.m. Sunday and these arrangements stop during school holiday periods and recommence on the first weekend after school resumes;

   ii)for one half of the school holidays.

5. To facilitate B's time with his mother changeover take place at Suburb PP McDonalds.

6. Subject to the conditions imposed by the B's schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

7. That each parent shall ensure that B attend all educational, sporting and hobby events when he is with that parent in all reasonable circumstances

8. That the parties shall keep one another informed of matters concerning B via a Communication Book that travels with him at the commencement and conclusion of any time spent with B on all aspects of the care, welfare and development of the child, such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to B.

9. That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.

10. That the parents be restrained and an injunction issues restraining the parents from:

    a)physically disciplining the child;

    b)discussing; questioning or otherwise encouraging the child to discuss adult issues of conflict raised during the trial, and in particular past allegations of alleged abuse whether sexual or otherwise;

    c)denigrating or making hurtful comments about the other parent and the other parent's family and partners in the presence or hearing of the child; and

    d)recording by phone or other device the words or actions of the child other than playing, and in particular, for the purpose of establishing alleged disclosures or negative remarks about the other parent.

11. That B attend upon E and that the mother and the father participate in the counselling/therapy as recommended by the treating practitioner.

12. That the mother be at liberty to attend upon Susan VV for counselling/therapy for herself.

13. That the Independent Children's Lawyer be at liberty to provide the court's reasons for judgment to B's treating practitioner, to the counsellors for the mother and the father, to the Department of Child Safety and to Queensland Police Service.

APPENDIX TWO

1. That the father have sole parental responsibility for the child B born … 2013 (“the child”).

2. That the child live with the father and spend time and communicate with the mother:

   a)After an initial settling in period with the father of one (1) month, the child spend supervised time with the mother at TT Group at such time as may be able to be facilitated by that centre or as otherwise agreed between the parties

3. That the Mother and Father shall:

   a)Keep the other parent informed at all times of their residential address and landline contact telephone number;

   b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and

   c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness by the child.  This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

4. That the parents authorise, by this Order, the school or day care centre attended by the child to give each parent information about the child’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

5. That during the time the child are with either parent, that parent shall:

   a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   b)Speak of the other parent respectfully; and

   c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

APPENDIX THREE

1. That the parents have equal shared parental responsibility in relation to all long-term decisions affecting the child B born … 2013 (“the Child”) including but not limited to:

   a)The child’s health and medical treatment

   b)The child’s education; and

   c)The child’s religion and cultural upbringing.

2. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental [responsibility] and shall make a genuine effort to come to a joint decision.  They are not, however, required to consult with each other about the daily care of the child.

3. That the child lives with the Father.

Regular time spending

1. That the child spend time and communicate with the mother at all reasonable times as agreed between the parents but failing agreement, as follows:

   a)During 2018, each alterative weekend from the conclusion of day care Friday until the commencement of day care Monday;

   b)During 2019, each alternate weekend from the conclusion on school Friday until the commencement of school Tuesday;

   c)From the commencement of Term 1 in 2020, each alternate weekend from the conclusion of school Friday until the commencement of school Wednesday;

   d)From the commencement of Term 3 in 2020, each alternate weekend from the conclusion of school Friday until the commencement of school Thursday; and

   e)During 2021 and thereafter, from the conclusion of school Friday until the commencement of school Friday.

School holiday periods

1. That the time spending arrangements in Order 4 herein be suspended during the school holiday period and the child shall spend time with the Mother during the school holiday periods as agreed between the parties and failing agreement as follows:

   a)For the first half of Easter, June/July and September school holiday periods in even years, and the second half of Easter, June/July and September school holiday periods in odd numbered years; and

   b)During the Christmas school holiday period, the child spend time with the Mother each alternate week, with the child to spend time with the mother for the first week (and each alternate week there after) in even numbered years, and the second week (and each alternate week there after) in odd numbered years.

Special occasions

1. That notwithstanding any other order herein, unless otherwise agreed between the parents, the child shall spend time with the parents at Easter as follows:

   a)From 9.00 am Good Friday until 3.00 pm Easter Monday with the Father in odd numbered years and the Mother in Even numbered years.

2. That notwithstanding any other order herein, unless otherwise agreed between the parents, the child shall spend time with the parents at Christmas as follows:

   a)In even numbered years from 4.00 pm Christmas Eve until 1.00 pm Boxing Day with the Father and from 1.00 pm Boxing Day until 4.00 pm 28 December with the Mother; and

   b)In odd numbered years from 4.00 pm Christmas Eve until 1.00 pm Boxing Day with the Mother and from 1.00 pm Boxing Day until 4.00 pm 28 December with the Father.

3. That on the child’s birthday the child shall spend time and communicate with the parent they are not spending time with as follows:

   a)If it falls on a non-school day, from 2.00 pm until 6.00 pm;

   b)If it falls on a school day, the parent that is not ordinarily spending time with the child shall contact the child by telephone between 6.00 pm and 7.00 pm.

Changeover

1. That unless otherwise agreed between the parents, changeover is to occur at the child’s school/day care.

2. That unless otherwise agreed between the parents that changeover on a non-school day occur at Suburb PP McDonalds or a place half way between where each parent resides.

Telephone time

1. That the child shall be at liberty to communicate with either parent by telephone at all reasonable times they request.

Specific issues

1. Subject to the conditions imposed by the child’s schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

2. That each parent shall ensure that the child attends all educations, sporting and hobby events when the child is with that parent in all reasonable circumstances.

3. That the parents shall keep one another informed of matters concerning the child via a communication book that travels with the child at the commencement and conclusion of any time spent with the child on all aspects of the care, welfare and development of the child, such as schooling, extra circular activities, medical issues and any other issues that may arise with respect to the child.

4. That each parent keeps the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least seven (7) days prior to relocating their residence beyond an eighty (80) kilometre radius from where they currently reside.

5. That the child attend school half way between the both parent’s residence.

6. That the parents be restrained and an injunction issues restraining the parents from:

   a)Physically disciplining the child;

   b)Discussing, questioning or otherwise encouraging the child to discuss adult issues of conflict raised during the trial, and in particular past allegations of alleged abuse whether sexual or otherwise;

   c)Denigrating or making hurtful comments about the other parent and the other parent’s family and partners in the presence or hearing of the child; and

   d)Recording by phone or other device the words or actions of the child other than playing, and in particular, for the purposes of establishing alleged disclosures or negative remarks about the other parent.

7. That the child and both parents attend upon Ms VV at TT Group for the purposes of counselling.